(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

The powers under Section 5, which have been frequently abused by police, pose a threat to free speech and the right to protest. In 2009, Section 5 was used by the police 18,249 times. Less than one in six of these offences had a religious or racial element. The majority were for the crime of ‘insult.’

There have been numerous controversial cases involving Section 5:

A student asked a mounted police officer if he realised his horse was ‘gay.’ He was arrested for making homophobic remarks and spent a night in a police cell before charges were dropped.

A teenager was charged for demonstrating outside the London headquarters of the Church of Scientology with a placard saying: ‘Scientology is not a religion, it is a dangerous cult.’

Christian hoteliers were accused of asking a Muslim guest if she was a murderer and a terrorist because she was wearing a hijab.

The ‘Reform Section 5’ campaign was launched by David Davis MP and others back in May. Davis says reform is ‘vital to protecting freedom of expression in Britain today.’ He added: ‘Who should decide who is insulted? The police? A judge? The truth is that Section 5 is having a terrible, chilling effect on democracy today.’

Since then, the campaign has gained support from a diverse range of groups and individuals. These include the National Secular Society, the Christian Institute, the Bow Group and the Freedom Association. Blackadder actor Rowan Atkinson has voiced concerns about the erosion of free speech, and even Stephen Fry has leant his support (naturally via Twitter).

Atkinson recently gave a speech at a Reform Section 5 Parliamentary reception. He referred to a sketch from ‘Not The 9 O’Clock News’ in which a ‘manifestly racist’ police officer arrested a man on trumped-up charges. He concluded by saying that, in relation to Section 5, ‘who would have thought that we would end up with a law that would allow life to imitate art so exactly.’

Gay rights campaigner Peter Tatchell, who himself has been arrested under Section 5, argues that ‘what constitutes insults is a very subjective judgement. It’s been used in very different ways. We may disagree on some of those views but I don’t think they should be criminalised in a free and democratic society. We should have the right to speak our minds, and I think putting up with insults is one of the prices we pay for that freedom.’

Most strikingly, Tatchell goes on to state that the most dangerous aspect of Section 5 is that an offence is committed regardless of the person’s intention. One cannot help being reminded of Orwell’s Thought Police.

A reform of Section 5 is essential to ensure we have free expression without the threat of arrest. Such reform could easily be implemented through amendment of the current Protection of Freedoms Bill. Also, there should be no concern that reform would leave the police with insufficient powers to combat disorderly behaviour. Section 4 and 4A provide adequate powers in this area.

There is also evidence that a large number of MPs support such reform. A recent ComRes poll suggested that 62% of MPs think it should not be the state’s job to ban insults.

Though Section 5 may have been well intentioned, legislation of this nature paves the way to a more authoritarian society. It allows for the stifling of free speech and protest. In this regard, public complacency and apathy are dangerous. Without reform of Section 5, we may well find ourselves sleepwalking into an Orwellian future.

Andrew read politics at the University of Nottingham before studying law at City University. After a short stint at Conservative Party HQ, Andrew now works in Parliament. Andrew also heads the Conservative youth wing in Essex. He volunteers at his local Citizens Advice Bureau and is a keen cricketer.
Follow Andrew on twitter: @AG_ThorpeApps

Exactly, anything said could be understood as grossly offensive, so how can you police it fairly? You are not free to speak unless you are free to offend.

Tom

This is so true. One of my friends who is a law student watched a police officer use what he deemed unreasonable force. He said that’s assault and they chucked him in the back of a police van took him 20 miles away to the station. They even strip searched him, he wasn’t even drunk. Then they let him go with no charge the next morning and he had to pay 30£ for a taxi. The reality anyone can deem anything offensive and it is impossible to give offence you can only take it so how can it be law?